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Entries in Employment Advice (18)

Friday
Oct202017

Employment Tribunal Fee refund scheme launched

The Ministry of Justice and HM Courts & Tribunals Service have announced that the first wave of people eligible for employment tribunal fee refunds will be able to apply from today.

This follows an appeal hearing by Unison and the subsequent ruling by the Supreme Court in July where they declared that “fees for those bringing employment tribunal claims were ruled to be unlawful and therefore nullified.”

During this first stage of the phased implementation up to around 1,000 people will be contacted and given the chance to complete applications before the full scheme is opened up in the coming weeks.

As well as being refunded their original fee, successful applicants to the scheme will also be paid interest of 0.5%, calculated from the date of the original payment up until the refund date.

It is claimed that the opening phase will last for around 4 weeks. Further details of the scheme, including details of how it can be accessed, will be made available when the scheme is rolled out fully.

If you have any questions regarding employment tribunals or any other employment matter please contact Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453) or Greg Jones (gregjones@greene-greene.com ~ 01284 717446). For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

Wednesday
Jul262017

Employment tribunal fees unlawful

   The Supreme Court has declared this morning that fees for those bringing employment tribunal claims have been ruled unlawful and will be nullified. As a result, the government will possibly have to repay up to £32m to claimants in respect of fees paid between 2013 and now.

The decision follows the appeal by the trade union Unison who argued that the fees prevented many workers from getting ‘access to justice’.  The Supreme Court referred to the Government’s review on the impact of fees (discussed in our previous blog on 1 February 2017).  There has been ‘a sharp, significant and sustained fall’ ‘in the number of employment tribunal claims since the introduction of fees representing a reduction of 66–70% of cases. The proportion of claimants receiving fee remission was also lower than the government had anticipated. On this evidence the Court concluded that many people found the fees unaffordable and had been denied access to justice.

With fees ranging between £390 (Type A) and £1,200 (Type B) for a case to be heard at a hearing, the Supreme Court also concluded that it was indirectly discriminatory to charge higher fees for type ‘B’ claims (which include discrimination claims) than type ‘A’ claims (such as unpaid wages). It was found that a higher proportion of women bring Type B claims than Type A and that they were placed at a particular disadvantage compared to men; and it could not be objectively justified why Type B claims were more expensive.

What happens next?

  • Anyone lodging a tribunal claim will not be required to pay the tribunal fees. Those who have paid the fees (be it Claimants or Respondents) will have to watch this space in terms of how to reclaim fees (if possible).
  • Whether the number of claims will rise as sharply as they fell on the introduction of the fees regime is something Employers, ACAS and the Employment Tribunals will be watching very carefully. If they do, significant resources will need to be put back into the system to avoid a further backlog of claims.  
  • The Court’s decision does not prohibit the government imposing fees in the future as the decision relates to the level of fees being unlawful and preventing access to justice. Further consultation on this is likely to be necessary before any decision is taken.
  • Immediate attention is required by the Employment Tribunals Service for reprogramming the online claim form system and for them to rewrite the tribunal rules.
  • There is also the question concerning the amount of people who chose not to bring a claim due to the cost of the fees and whether they will seek to lodge their claims out of time. Although the answer the question is unknown, anyone in this position will need to act immediately to avoid prejudicing their chances.

If you have any questions regarding employment tribunals or any other employment matter please contact Greg Jones (gregjones@greene-greene.com ~ 01284 717446) or Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453).

For more information on the services offered by Greene & Greene Solicitors please visit http://www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

Tuesday
Jul252017

TUPE: a cautionary tale of a business sale

In their latest blog, Employment law specialists, Angharad Ellis Owen and Greg Jones talk about the rights and obligations where employees transfer under TUPE.

You may have first-hand experience of business sales and having to comply with TUPE; alternatively, you may have only heard the acronym and wondered what it was all about!  TUPE refers to the Transfer of Undertakings (Protection of Employment) Regulations 2006; the purpose of which is to protect employees' rights on a business sale. TUPE essentially means that a buyer of a business steps into the shoes of the seller. A buyer therefore needs to know what it is they are in fact acquiring.  

What transfers under TUPE?

Where employees transfer under TUPE, various rights and obligations, powers and liabilities transfer with them to the buyer. For example, this includes:

  • the employees’ continuity of service;
  • the contracts of employment, including all terms and conditions of employment such as pay, commission and bonus entitlements, holidays and sick pay provisions; and
  • liability for the seller’s acts and omissions in respect of the newly acquired employees.

 

How do you know what you’re inheriting?

TUPE requires the seller to provide the buyer with ‘employee liability information’ (ELI) 28 days before the business transfer. The ELI must contain the information that an employer is obliged by law to provide its employees when starting in post; this includes detail as to the employee’s rate and method of calculating pay.

The Employment Tribunal can award compensation of a ‘just and equitable’ sum in the event of a failure to comply with the ELI obligation. Any award is generally subject to a minimum of £500 for each employee whose information was not provided or was defective.

What if the seller wrongly labels the contractual status of an entitlement?

In the recent case of Born London Ltd v Spire Production Services Ltd, the scope of the ELI obligation was considered. S supplied B with its ELI and stated that it operated a non-contractual Christmas bonus. After the transfer, B contended that this was incorrect, that the bonus scheme was contractual, rather than discretionary, and S was therefore in breach of its ELI obligation under TUPE. B estimated its losses would exceed £100,000.

The Employment Appeal Tribunal held that although the employer had to specify the method by which remuneration had to be calculated it did not mean that the employer had to state whether any aspect of the remuneration was contractual. It therefore followed that as part of the ELI a seller was not obliged to state whether remuneration, including a bonus, was contractual or not.

“…that is a matter for due diligence, it is not a requirement of TUPE”.

The Employment Appeal Tribunal also observed that a buyer may prefer to have greater clarity as to the precise nature (contractual or otherwise) of some of the matters listed, but that is a matter for due diligence, it is not a requirement of TUPE.

Where does this leave us?

The decision should not be seen as authority for the proposition that a seller can escape liability for inaccuracies in the ELI.  However, the case does confirm that the employee liability information is not confined to contractual entitlements only. From the buyer’s perspective it is important that further details of the precise contractual nature of these employee liabilities should be pursued through due diligence and ideally dealt with in warranties and indemnities contained in the business sale agreement. Conducting thorough due diligence will also enable a buyer to agree a suitable price for the business, taking into account any potential liabilities that arise from the sale.

If you have any questions regarding to TUPE or any other employment law matters please contact Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453) or Greg Jones (mail to:gregjones@greene-greene.com ~ 01284 717446).   For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

“This article was previously published in the EADT Business East Monthly Magazine on 18/7/17.”

Thursday
Jul062017

Data Protection is evolving - are you ready?

Angharad Ellis Owen, a Barrister within the Greene & Greene Employment Team, talks about the General Data Protection Regulation (GDPR) that is due to come into force on 25 May 2018. This new EU regulation replaces the existing Data Protection Act 1998 and aims to keep pace with the evolving digital world.

With Brexit looming, the Information Commissioner's Office (ICO) reported the government’s confirmation that the UK will be implementing the GDPR. Karen Bradley, The Secretary of State for Culture, Media and Sport, stated: “We will be members of the EU in 2018 and therefore it would be expected and quite normal for us to opt into the GDPR and then look later at how best we might be able to help British business with data protection while maintaining high levels of protection for members of the public.”  

Whilst Information Commissioner Elizabeth Denham has told businesses there’s no time to delay in preparing for “the biggest change to data protection law for a generation”, a YouGov report suggests that only 30% of the UK's businesses have so far taken steps to prepare for the introduction of the GDPR.

It has been said that the “GDPR is an evolution of the existing rules, not a revolution” and it is fair to say that the main concepts and principles remain unchanged; for example, the concepts of personal data, data controllers and data processors are broadly similar. However, the GDPR introduces new concepts and enhancements, such as the definition of personal data being extended to include IP addresses. Accountability and transparency are key concepts of the GDPR and preparing for the change will certainly require the attention and additional financial resources from organisations.  

Some of the main changes to be introduced by the GDPR are:

  • Harmonisation – of privacy laws across EU members states.
  • Fines – the ICO wields a bigger stick with fines against data controllers and data processors based on a two-tier basis. For the most serious violations of the law, the ICO will have the power to fine companies up to €20 million or 4% of a company’s total annual worldwide turnover for the preceding year.
  • Consent - the framework for consent is strengthened. Consent must be freely given, specific, informed and unambiguous, and a positive affirmation of the individual’s agreement. It will no longer be possible to rely on implied consent.  You should therefore review how consent is managed and explore seeking consent to meet the new GDPR requirement.
  • Data breaches – the GDPR places an obligation to notify the ICO within 72 hours of a data breach where it is likely to result in a risk to the rights and freedoms of individuals, such as through identity theft or a confidentiality breach. The ICO recommends that you take action now to ensure that you have the right procedures in place to detect, report and investigate a personal data breach.
  • Subject access requests (SAR) - in most cases the charge will no longer apply to process the SAR and organisations will have a month to comply with a SAR request.
  • Privacy Notices - additional information must be provided to data subjects, such as explaining the lawful basis for processing personal data.
  • Data Protection Impact Assessments (DPIAs) - this will become a legal requirement in circumstances where processing operations are likely to present specific risks to data subjects (e.g where new technology is being deployed).
  • Data Protection Officers - whilst public authorities (and some other specific organisations) must designate a named Data Protection Officer who has responsibility for data protection compliance, it is recommended by the ICO that all organisations have such a designated officer.
  • Demonstrating compliance - organisations will need to demonstrate compliance with the GDPR.
  • Children - GDPR introduces special protection for children’s personal data, though only in the context of commercial internet services, such as social networking.
  • International - for organisations that operate in more than one EU member state, the ‘main establishment’ will become the lead data protection supervisory authority.

Action

It is important that you start preparing now, for example you should consider:

  • Conducting an audit of all personal data processed - to understand what personal data you hold, the source of the data and who it is shared with. 
  • Consider why you process this data.
  • Ensure that you have systems (e.g. audit trails) in place to demonstrate compliance.
  • Allocate a Data Protection Officer.
  • Review all data processing contracts with a view to updating from May 2018.
  • Review and update internal policies and procedures, such as Data Protection Policies, Bring Your Own Device to Work Policy, Privacy Notices and Consent.
  • Review, update and/or implement internal processes, e.g. SAR process, DPIA, and data breaches.
  • Consider training key personnel on GDPR, who in turn can cascade knowledge business-wide.

The ICO has produced guidance on the steps that organisations should be taking now to prepare for the introduction of the GDPR (see useful links below).

Contact Us

If you have any questions in relation to your obligations or any other employment law matters please contact Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453) or Greg Jones  (gregjones@greene-greene.com ~ 01284 717 446).

For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

Useful links

https://ico.org.uk/media/for-organisations/documents/1624219/preparing-for-the-gdpr-12-steps.pdf

https://ico.org.uk/for-organisations/data-protection-reform/overview-of-the-gdpr/

https://ico.org.uk/for-organisations/improve-your-practices/data-protection-self-assessment/getting-ready-for-the-gdpr/

Wednesday
Jul052017

Greene & Greene present Law Award at West Suffolk College

                      

West Suffolk College held its Celebration of Achievement Awards for 2017 in a large marquee in the college grounds on Friday 30 June. This annual event recognises students for their hard work and dedication to their chosen subjects.

Greene & Greene is proud of its association with West Suffolk College and sponsored its ‘Outstanding Student of the Year Business Management (Law)’ award for the second year. Angharad Ellis Owen, Employment Law Barrister at Greene & Greene, was delighted to present the award to Andrew Stokes for his hard work throughout the year, which was rewarded with excellent results.

Hospitality students from the College’s Edmunds restaurant catered for the gala dinner, with entertainment provided by the A Capella student group, Amado, and a choir from Conservatoire East.

If you have any questions regarding employment law matters please contact Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453).  For more information on the services offered by Greene & Greene Solicitors please visit http://www.greene-greene.com/index.html and follow on Twitter @GreeneGreeneLaw.

Friday
May122017

Gender pay gap reporting in practice

In December 2016 we reported on how we had been working with clients for a number of months to prepare them for the new gender pay gap reporting procedures.  

In this latest blog employment specialist, Angharad Ellis Owen, takes us through the gender pay gap reporting obligation that came into effect on 6 April 2017.  Whilst there have been some amendments to the initial draft, which was published in January 2017, the final version of the ACAS Guide ‘Managing Gender Pay Reporting’ is now available. The most notable amendment was that the obligation now also applies to public authorities.

Employers have been wondering how the data will be displayed on the government website. Well, the wait is over as the website is now live and at the time of writing, six employers have already uploaded their gender pay gap information.

You can view it here: https://gender-pay-gap.service.gov.uk/Viewing/search-results

The government website

The website has two sections; ‘find employer’ and ‘download data’.  In the ‘find employer’ section, companies are listed by name, address and sector. There is also a function to filter the list of employers by reference to one of 22 sectors.

When selecting the company, the gender pay gap figures are displayed on three ‘tabs’ (1) hourly rate,  (2) pay quartiles, and (3) bonus pay. Surprisingly, despite there being a requirement to publish data relating to the proportion of males and females receiving a bonus payment and the proportion of males and females in each quartile band; the website does not provide this data and I wonder whether this is an omission which will be corrected.

The name of the person responsible for the employer’s report is also clearly stated on the page together with their job title. However, this is not a requirement for public sector employers.

Interestingly, despite the ACAS Guide suggesting that employers’ should provide a narrative to support their gender pay gap report there is no section on the website that enables you to document a supporting narrative.  

The Regulations also state that the information must be published on the employer’s website ‘in a manner that is accessible’.  Many employers are waiting to see how others are publishing the data on their respective websites. At the time of writing, there are two examples of how this has been done and can be seen via the following links:

http://www.contractorumbrella.com/genderpayreporting.html https://www.fdmgroup.com/uk/investors/gender-pay-gap-reporting/

The ‘download data’ section collates all employers’ data into one Excel spreadsheet. With only six companies having published so far, I do wonder whether this spreadsheet will become more sophisticated once greater numbers of employers have uploaded their data. Currently listed in alphabetical order, I also query whether over time, business sector may be included in the spreadsheet to enable the data to be compared by sector thus enabling greater analysis and comparison of the gender pay gap to take place.

Action required

It is important that relevant employers (any organisation that has 250 or more employees) are collating their gender pay gap data and preparing it for publishing.

If you have any questions regarding your obligations to gender pay reporting or any other employment law matters please contact Angharad Ellis Owen (aellisowen@greene-greene.com ~ 01284 717453).  For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.  

Other useful links

Government website: https://gender-pay-gap.service.gov.uk/Viewing/search-results

ACAS Guide: http://www.acas.org.uk/media/pdf/m/4/Gender_Pay_Reporting_GUIDE3.pdf